Defamation claims arise frequently in employment settings. Employees often disagree with their performance reviews and, if they feel particularly aggrieved, resort to the courts to extract a modicum of revenge. Unfortunately for them, statements relating to employee discipline and termination made by managers and supervisors usually enjoy a qualified privilege against defamation claims. The privilege generally insulates such statements from liability absent clear and convincing evidence of malice or some other indicator that the privilege has been abused. When an employer makes a false and defamatory statement about an employee, but that statement is protected by a qualified privilege that has not been lost or abused, the statement is not actionable.
Of course, before the question of privilege even comes into play, there is the matter of whether the statement at issue is defamatory in the first place. In Regina M. Zarrelli v. City of Norfolk, Ms. Zarrelli sued the City of Norfolk, Virginia (her former employer) along with the City’s Commonwealth’s Attorney, Gregory D. Underwood, based in part on being required to apologize to a vendor. It didn’t work, and the case was dismissed both because the statements were not defamatory, and because even if they were, they were protected by qualified privilege.
Zarrelli worked in the Office of the Commonwealth’s Attorney and was assigned to the Victim/Witness Assistance Program. On May 4, Underwood reprimanded Zarrelli for violating office policies regarding travel accommodations for non-local victims and witnesses. Zarrelli had allegedly made repeated requests of the Office’s travel vendor that a rental car be added to a particular witness’ travel itinerary despite the Office’s Travel Coordinator’s repeated cancellation of the rental and instruction from the Deputy Commonwealth’s Attorney that witnesses are separately responsible for this kind of transportation. Describing Zarrelli’s behavior as “counterproductive and undermining,” he suspended her without pay for two days, placed her on probation for one year, and required her to draft a letter to a travel vendor explaining the proper policy regarding rental cars while acknowledging her own “inappropriate” conduct.
She wrote the required letter, but in a matter the court found “dismissively insubordinate,” expressing to the vendor that she disagreed that she had acted inappropriately and that she was being forced to write the letter. She was fired the same day.
Zarrelli argued that being forced to write the letter constituted defamation per se because it damaged her professional integrity and hindered her ability to obtain employment elsewhere. The court rejected this, pointing out that “in Virginia, a false statement is not, in and of itself, actionable. That statement must also be defamatory.” In other words, to be actionable, a statement must be defamatory in the first instance before it will be considered defamatory per se.
The court also explained that speech will not be actionable if it does not contain a provably false factual connotation or language that can reasonably be interpreted as stating actual defamatory facts about a person.
The court found that the statements at issue did not falsely portray Zarrelli in a damaging light and were not actionable. “At most,” the court held, “they reveal her disagreement with Underwood about the rental car policy, and subsequent refusal to follow his direction – facts which she does not contest.” The court rejected Zarrelli’s argument that the statements could be reasonably interpreted as an implication that Zarrelli was guilty of financial impropriety.
Finally, because Zarrelli failed to show that the defendants acted with some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff, the court found that the qualified privilege had not been lost or abused. The case was therefore dismissed.